The Ontario Superior Court of Justice was asked to address this very question in the September 30, 2003 case of Moffatt v. Moffatt. After the couple separated in 1997, they entered into a separation agreement that placed their two children with the mother. The father was a teacher and earned $63,000 per year. In June 2001, he took advantage of a temporary window of opportunity and chose to take early retirement. He accepted the converted value of his teachers’ pension in the sum of $526,026.63 and left the workforce.

Mr. Justice Campbell decided that the father, by choice, had become intentionally under-employed as described in section 19 of the Child Support Guidelines. The court decided that the father made a decision to benefit himself and himself only. Because the father was only 54 years old when he took early retirement, and because he had an ongoing obligation to his two children, his decision had a significant negative impact on his two children.

The father was ordered to pay child support for his children in the amount of $929 per month based upon an attributed income of $70,200 per year that would continue up to the date when he otherwise would have been entitled to retire.

The better the communication between the spouses, the more successful mediation can be, because the spouses will each actively participate in the mediation process. However, when the spouses are unable to deal directly with each other, mediation can still be useful. In this case, the mediator may start by meeting with both spouses to discuss the objectives of the mediation and then separate them so the mediator can meet with one spouse at a time, in different rooms. The mediator can then shuttle between the two spouses to mediate an agreement.